Proceeds of Crime Bill

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Mr. Carmichael: The Minister's comments seem to reinforce further the argument for specifying the hierarchy in the Bill. Does he understand the practical implications of his comments for the director and the criminal law investigation authorities? He seems to be saying that if the director comes across information that should give rise to criminal proceedings, he must slam on the

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anchors, and it will go to the criminal investigating authorities, which may or may not proceed with it. The point at which the director's investigations conclude will be a grey area. That is heaping up trouble.

Mr. Ainsworth: I understand the hon. Gentleman's point, and I am not trying to detract from the issue that may be involved.

When information is passed on for criminal investigation and a prosecution is subsequently brought, nothing in the Bill cuts across people's rights in respect of self-incrimination. If an attempt were made to use information gained under the director's investigating powers in that way, case law would protect the person involved against its inappropriate use. That is what will happen in the case of evidence.

In dealing with information that will not necessarily be used as evidence but subsequently becomes part of a criminal investigation--the ''bog standard'' criminal investigation, as the hon. Member for Beaconsfield described it--all the director's powers are subject to judicial approval. He must satisfy that judicial authority that he requires the information in order to carry out functions in which he is currently engaged. That safeguard is provided. He cannot simply acquire information in order to pass it on to law enforcement agencies for use in prosecution.

We intend the hierarchy to operate. All Committee members want that. The public would think that we were putting ourselves in a strange position if we set up a situation in which an agency that was pursuing the proceeds of crime came across information clearly relevant to a prosecution, yet could not pass that information to the prosecuting authorities because we had banned it from doing so. I am unsure whether the public would understand why that should happen. There are many circumstances in which other people and organisations are obliged to do that. Should we ban the director from doing that, when there is judicial oversight of all the powers that he has been given? We are addressing a substantive issue, but we ought not to go down the route that has been suggested.

Mr. Grieve: Yeah?

The Minister of State, Scotland Office (Mr. George Foulkes): How is Hansard going to report that?

Mr. Grieve: As an exclamation, perhaps.

I listened carefully to the Minister's remarks. He persuasively made an important point. I agree with him that it would be a little odd if the director's investigations were to unearth information that could have been disclosed to another law enforcement authority during the ordinary course of its investigations, but the director was precluded from disclosing it. That could result in a failure to alert the law enforcement authority to important information with regard to the prevention or prosecution of a crime, and it could lead to additional costs, as that authority would have to search for that information independently. There is a logic to the Minister's argument.

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However, there is also a problem with it. We are setting up a system that is acknowledged to be for a specific purpose--indeed, I have described it as a parallel system of justice. That is one of the reasons why I had concerns. That system is specifically targeted at money, and it specifically gives the director extraordinary powers that are unusual--if not, in some cases, novel--under our legal system.

Because they exist, those powers will be used. I fear that they will begin to be used very frequently, and for a purpose for which they were not principally intended, which will enable law enforcement agencies to obtain information that they would not otherwise have been able to get.

Mr. Carmichael: Would the hon. Gentleman care to comment on the Minister's revelation that, apparently, such information will be inadmissible, in accordance with case law? Welcome though that concession is, there is nothing in the Bill that indicates that case law continues to apply hereand as this will be an Act of Parliament, it would trump the previous case law.

Mr. Grieve: Two issues are at stake. First, I am not satisfied with what has been said about the information not being used as evidence. If it were capable of being passed to the other law enforcement agencies, they could gather evidence based on that information. That is not a good factor, and it is the one that worried me most. I should like to hear more from the Minister about the fact that nowhere is that spelled out in the Bill. There are provisions under which specific questions asked of an individual cannot be used, because of the protection against self-incrimination. Although people may be required to answer such questions, their answers cannot be used against them. I accept that under those provisions, such matters could not be used as evidence in a criminal prosecution. To that extent the Minister may be right, but that does not get away from the fact that it is still information that other law enforcement agencies would not otherwise be able to obtain.

Mr. Field: I entirely agree with my hon. Friend that the Bill will set up a parallel system of justice. Will he say how that marries with the Minister's assertion that there would still be a strict hierarchy? It has been asserted that the agency will play a part in the hierarchy. However, the nub of our argument is that there will be a parallel systemand, clearly, an opportunity for abuse.

Mr. Grieve: The difficulty is that the hierarchy envisages that the first thing is to consider prosecution. That is the top end of the hierarchyyet oddly enough, that is not where the most power lies; the most power lies lower down the hierarchy, and is given to the director for the purpose of confiscating assets or civil recovery. On the face of it, he will have powers that are wider than those of any other enforcement individual or authority in the land. He will be a powerful figure in the obtaining of information and the ability to use it for a specific purpose.

It strikes me that there is a direct conflict between the hierarchy and the way in which power is disposed. Although prosecution is at the top of the hierarchy, it is lower down the hierarchy that the most investigative

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powers will be provided. Yet the Minister is asking the Committee to approve a clause that will allow information obtained for a purpose lower in the hierarchy to be fed back up to the top.

Ian Lucas (Wrexham): Can the hon. Gentleman assist me by specifying what mechanism will come into existence whereby the steps taken by the director of the Assets Recovery Agency to obtain information will be passed on to other law enforcement authorities? Is he seriously suggesting that they will put pressure on the director to use the procedure?

Mr. Grieve: Pressure will not be needed. Let us suppose that the Crown Prosecution Service investigates a major crime and it cannot find the evidence, but thinks that money laundering is going on. Although it cannot bring proceedings, it tell the directora perfectly legitimate processwho carries out his investigation. During that investigation, by using his powers the director may find the evidence that the CPS has not been able to lay its hands on and feed it back to the CPS. He will then, quite unwittingly in a sense, have acted as the CPS's own investigator to obtain information under our unwritten constitution, which is the power that we give to prosecutors. The CPS will then start the wheels grinding again. It is a serious issue.

Mr. Carmichael: The sound scenario that the hon. Gentleman outlines carries a further problem. It leaves as the arbiter of what constitutes grounds for investigation and criminal proceedings staff of the director of the Assets Recovery Agency, who will not necessarily be qualified to do that work. In that sense, the interests of justice will not be well served by the provision.

4.15 pm

Mr. Grieve: I entirely agree. The hon. Gentleman makes a good point. The matter will be in the hands of those whose prime responsibility is asset recovery. The Minister has properly and repeatedly emphasised that we are discussing asset recovery legislation and a system not of sending people to prison or giving them criminal convictions but of depriving them of assets. It is accepted that that will be done on a non-criminal test in some circumstances in which people already have convictions but the money involved is not necessarily linked to that conviction, and in circumstances in which no criminal conviction is involved and extraordinary powers are given that override some of the usual safeguards in our legal system.

Mr. Ainsworth: So that we stay on the issue at hand, I should like to make a couple of things clear. The director does not have powers in relation to money laundering. He can use his powers only for his functions in confiscation and civil recovery.

The hon. Gentleman referred earlier to my statement about use of evidence being specified in the Bill. I apologise for having taken some time to find the reference. I refer him to clause 349(1), in which the director's main additional power--the disclosure power--is specified:

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    A statement made by a person in response to a requirement imposed on him under a disclosure order may not be used in evidence against him in criminal proceedings.

Overriding provisions on perjury are referred to later in that clause.

Mr. Grieve: That is precisely why I said what I did in response to the hon. Member for Orkney and Shetland (Mr. Carmichael). I knew that we had considered safeguards. However, the Minister must accept that that does not prevent the passage of information. It prevents the use of that information as evidence.

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